What was Tenancy Tribunal case 4764200 about?

The tribunal order states: Ernest Sulivan must pay [The tenant/s] $3,150.44 immediately being refund of

How much money was awarded in case 4764200?

Compensation: $1,200.00 awarded to landlord; Property Damage: $1,500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4764200?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4764200?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9996091-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4764200 about?

The tribunal order states: Ernest Sulivan must pay [The tenant/s] $3,150.44 immediately being refund of

How much money was awarded in case 4764200?

Compensation: $1,200.00 awarded to landlord; Property Damage: $1,500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4764200?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4764200?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9996091-Tribunal_Order_Redacted.pdf.

Room 2, 12 Hereford Street, West End, Palmerston North Tenancy Tribunal Case 4764200 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4764200. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
immediately being refund of the bond of	$430.00	immediately being refund of the bond of
compensation of	$1,200.00	compensation of
exemplary damages of	$1,500.00	exemplary damages of
and reimbursement of the filing fee of	$20.44	and reimbursement of the filing fee of

Order

Ernest Sulivan must pay [The tenant/s] $3,150.44 immediately being refund of the bond of $430.00, compensation of $1,200.00, exemplary damages of $1,500.00 and reimbursement of the filing fee of $20.44.

Reasons

Both parties attended the hearing. Claims
The Tribunal determined by Order dated 12 January 2024 that it has jurisdiction to hear the tenant’s claims.
That Order determined that the Tribunal was to consider the following claims by the tenant: a. Compensation for actual and general damages of $1,200.00. b. Exemplary damages for the landlord terminating the tenancy knowing that he was not entitled to. See section 60AA Residential Tenancies Act 1986 (“RTA”). c. Exemplary damages for the landlord issuing a retaliatory notice. See section 54 RTA. d. Refund of the bond. e. Reimbursement of the filing fee. Evidence
I have reviewed all the parties’ evidence and submissions, including those submitted by the landlord at the hearing, I have only referred to what I consider necessary to give context to my decision. Background
The parties agree on the following brief summary of events: a. The parties entered into a Flat Sharing Agreement dated 3 May 2023. b. On 7 December 2023 the landlord texted the tenant to complain that another tenant had reported the tenant smoking marijuana on the property. The landlord gave the tenant 21 days’ notice that the tenant was being terminated on 1 January 2024. c. The tenant explained that he had a prescription for the marijuana and asked the landlord to reconsider the termination notice or to grant him a longer period of notice so that he could find another property. d. The landlord advised that he would not rescind the termination notice nor shorten the period of notice. e. On 21 December 2023 the landlord texted the tenant to advise that the landlord acknowledged that he had over-reacted and offering to rescind the termination notice. f. The tenant had already taken steps to leave the property and did so on 23 December 2023. Claim for compensation
The landlord advised that once the Tribunal had determined that it had jurisdiction, he had offered the tenant the $1,200.00 in compensation he was seeking and agreed to refund the bond he was holding.
I am satisfied that the sum being sought by the tenant was fair and reasonable being an amount sufficient to enable him to move into new accommodation, together with a modest amount to recognise the distress the landlord’s actions caused him. Exemplary damages claim for termination without being entitled to
The tenant claimed that the landlord has breached his obligations under section 60AA RTA.
Under Section 60AA RTA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The landlord believed that he was entitled to give a 21 day termination notice without reason, based on the Flat Sharing Agreement entered into between the parties which he believed governed their relationship.
The landlord’s belief was wrong. As determined by the Tribunal in the previous Order, the RTA governed the relationship between the parties and contracting out of its provisions was invalid.
Ignorance of the law is not a defence nor an excuse. This is well-established law. The landlord is engaged in a commercial operation and it is his obligation to determine and satisfy its legal requirements. The law was summarised in the recent decision of TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182: “Like all citizens a landlord is deemed to know the law. Parliament’s intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”
The landlord has committed an unlawful act.
If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: a. The intention of the person b. The effect of the unlawful act c. The interests of the party against whom the unlawful act was committed; and d. The public interest.
Essentially these factors contained in section 109(3) RTA require a consideration of the gravity of the unlawful act, including its aggravating and mitigating factors. When considering the factors, it should be kept in mind that the object of exemplary damages is to punish and deter, not to compensate the victim of the unlawful act. However, if the effect of the unlawful act has been particularly severe on the other party, then this is likely to be an aggravating factor and, if it has had little or no effect, it will be a mitigating factor.
It is first necessary to consider the landlord’s intention. The question is not whether the landlord intended to commit an unlawful act. The question is whether the landlord intentionally did the particular act that constitutes the unlawful act: Parton v Fifita DC Auckland TT1815/00, 1 May 2001.
The landlord intended to issue the termination notice. It does not matter that he did not know that the notice was unlawful. The intention requirement is met.
The effect of issuing the notice was to put the tenant in the difficult position of finding new accommodation on short notice over the Christmas holiday period after a tenancy of some three and a half years. The landlord insisted on the termination period even when he was made aware of the tenant’s legitimate reasons for smoking marijuana and his mental health issues. While the tenant was able to find temporary accommodation with family, he has not yet been able to find new permanent accommodation.
It is important that the Tribunal makes it clear that unlawful acts will not go unpunished to deter landlords from ignoring or being blind to their legal obligations and their tenants’ rights.
As the landlord has accepted responsibility for his actions and has assured the Tribunal that he now accepts his responsibilities under the RTA and has taken steps to have a property manager appointed to manage his property to ensure full compliance with the RTA, it is appropriate to award a sum at the lower end of the amount that the Tribunal can award. Exemplary damages for retaliatory notice
On 7 December 2023, the landlord gave the tenant a notice ending the tenancy on 1 January 2024. The tenant claims the notice was retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
As discussed at the hearing, there is no evidence that the landlord issued the notice because the tenant was exercising any right under the RTA.
I accept that the landlord issued the notice under the terms of the Flat Sharing Agreement, not in retaliation. The tenant’s remedy is more properly found under section 60AA RTA above.
The tenant’s claim is dismissed. Bond
The landlord has agreed to refund the bond in full to the tenant. Filing fee
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4764200. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
immediately being refund of the bond of	$430.00	immediately being refund of the bond of
compensation of	$1,200.00	compensation of
exemplary damages of	$1,500.00	exemplary damages of
and reimbursement of the filing fee of	$20.44	and reimbursement of the filing fee of

Order

Ernest Sulivan must pay [The tenant/s] $3,150.44 immediately being refund of the bond of $430.00, compensation of $1,200.00, exemplary damages of $1,500.00 and reimbursement of the filing fee of $20.44.

Reasons

Both parties attended the hearing. Claims
The Tribunal determined by Order dated 12 January 2024 that it has jurisdiction to hear the tenant’s claims.
That Order determined that the Tribunal was to consider the following claims by the tenant: a. Compensation for actual and general damages of $1,200.00. b. Exemplary damages for the landlord terminating the tenancy knowing that he was not entitled to. See section 60AA Residential Tenancies Act 1986 (“RTA”). c. Exemplary damages for the landlord issuing a retaliatory notice. See section 54 RTA. d. Refund of the bond. e. Reimbursement of the filing fee. Evidence
I have reviewed all the parties’ evidence and submissions, including those submitted by the landlord at the hearing, I have only referred to what I consider necessary to give context to my decision. Background
The parties agree on the following brief summary of events: a. The parties entered into a Flat Sharing Agreement dated 3 May 2023. b. On 7 December 2023 the landlord texted the tenant to complain that another tenant had reported the tenant smoking marijuana on the property. The landlord gave the tenant 21 days’ notice that the tenant was being terminated on 1 January 2024. c. The tenant explained that he had a prescription for the marijuana and asked the landlord to reconsider the termination notice or to grant him a longer period of notice so that he could find another property. d. The landlord advised that he would not rescind the termination notice nor shorten the period of notice. e. On 21 December 2023 the landlord texted the tenant to advise that the landlord acknowledged that he had over-reacted and offering to rescind the termination notice. f. The tenant had already taken steps to leave the property and did so on 23 December 2023. Claim for compensation
The landlord advised that once the Tribunal had determined that it had jurisdiction, he had offered the tenant the $1,200.00 in compensation he was seeking and agreed to refund the bond he was holding.
I am satisfied that the sum being sought by the tenant was fair and reasonable being an amount sufficient to enable him to move into new accommodation, together with a modest amount to recognise the distress the landlord’s actions caused him. Exemplary damages claim for termination without being entitled to
The tenant claimed that the landlord has breached his obligations under section 60AA RTA.
Under Section 60AA RTA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The landlord believed that he was entitled to give a 21 day termination notice without reason, based on the Flat Sharing Agreement entered into between the parties which he believed governed their relationship.
The landlord’s belief was wrong. As determined by the Tribunal in the previous Order, the RTA governed the relationship between the parties and contracting out of its provisions was invalid.
Ignorance of the law is not a defence nor an excuse. This is well-established law. The landlord is engaged in a commercial operation and it is his obligation to determine and satisfy its legal requirements. The law was summarised in the recent decision of TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182: “Like all citizens a landlord is deemed to know the law. Parliament’s intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”
The landlord has committed an unlawful act.
If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: a. The intention of the person b. The effect of the unlawful act c. The interests of the party against whom the unlawful act was committed; and d. The public interest.
Essentially these factors contained in section 109(3) RTA require a consideration of the gravity of the unlawful act, including its aggravating and mitigating factors. When considering the factors, it should be kept in mind that the object of exemplary damages is to punish and deter, not to compensate the victim of the unlawful act. However, if the effect of the unlawful act has been particularly severe on the other party, then this is likely to be an aggravating factor and, if it has had little or no effect, it will be a mitigating factor.
It is first necessary to consider the landlord’s intention. The question is not whether the landlord intended to commit an unlawful act. The question is whether the landlord intentionally did the particular act that constitutes the unlawful act: Parton v Fifita DC Auckland TT1815/00, 1 May 2001.
The landlord intended to issue the termination notice. It does not matter that he did not know that the notice was unlawful. The intention requirement is met.
The effect of issuing the notice was to put the tenant in the difficult position of finding new accommodation on short notice over the Christmas holiday period after a tenancy of some three and a half years. The landlord insisted on the termination period even when he was made aware of the tenant’s legitimate reasons for smoking marijuana and his mental health issues. While the tenant was able to find temporary accommodation with family, he has not yet been able to find new permanent accommodation.
It is important that the Tribunal makes it clear that unlawful acts will not go unpunished to deter landlords from ignoring or being blind to their legal obligations and their tenants’ rights.
As the landlord has accepted responsibility for his actions and has assured the Tribunal that he now accepts his responsibilities under the RTA and has taken steps to have a property manager appointed to manage his property to ensure full compliance with the RTA, it is appropriate to award a sum at the lower end of the amount that the Tribunal can award. Exemplary damages for retaliatory notice
On 7 December 2023, the landlord gave the tenant a notice ending the tenancy on 1 January 2024. The tenant claims the notice was retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
As discussed at the hearing, there is no evidence that the landlord issued the notice because the tenant was exercising any right under the RTA.
I accept that the landlord issued the notice under the terms of the Flat Sharing Agreement, not in retaliation. The tenant’s remedy is more properly found under section 60AA RTA above.
The tenant’s claim is dismissed. Bond
The landlord has agreed to refund the bond in full to the tenant. Filing fee
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4764200 — Exemplary damages at Room 2, 12 Hereford Street, West End, Palmerston North

At a glance

Tenancy Tribunal case 4764200 — Exemplary damages at Room 2, 12 Hereford Street, West End, Palmerston North

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions